Implementing a Water Resources Regulatory Framework in China

Gregory A. Bonadies

North Carolina State University December 2, 2009

Abstract Scarcity, pollution and flooding are China’s three most critical water resources challenges. Thousands die in floods each year, millions fall ill or die from exposure to polluted water, and hundreds of millions suffer from water scarcity. To address these challenges, the Chinese government is implementing a sustainable development plan. A key part of this plan is a water resources regulatory framework. The study describes three major aspects of China’s water resources regulatory framework - legislation, administration and adjudication – and posits that progress in developing the framework is evidence of China’s intent to implement a national plan of sustainable development.

Introduction

China has eight percent of the world’s fresh water supply and twenty-two percent of the

world’s population.1 An expanding and extensively urbanized population is putting increasing

demand on China’s vital freshwater resources that are used for drinking, manufacturing, crop

irrigation, food supply, power generation, sanitation, navigation and recreation. Destructive

flooding, water scarcity and high levels of pollution threaten to undermine China’s ability to

maintain its course of substantial economic growth and development. The government of the

People’s Republic of China (PRC) has been introducing a series of water resources management

laws over the last twenty years in an effort to address and mitigate the trio of water challenges

that threatens at once the safety and security of its people as well as the continuing economic

viability of the nation.

The efforts of the PRC government to build an environmental law regulatory framework

and to increasingly engage civil society provide evidence of China’s commitment to achieving

its stated goal of implementing a program of sustainable development. Sustainable development

reconciles the dual goals of maintaining robust economic growth and development with

responsible stewardship of the environment to assure that the general welfare and human security

needs of China’s 1.3 billion citizens are given consideration. The government of the People’s

Republic of China has, through legislation, policy and regulatory action, begun engaging

domestic civil society and the private commercial sector to address, rectify and ameliorate

environmental problems. In this study, key concepts and their relationships with one another as

depicted in Figure 1 are discussed and evidence presented to validate the assumptions and

hypotheses of the primary thesis that the People’s Republic of China is systematically

1 Sawvel, Patty Jo (Ed.) Water Resource Management, Greenhaven Press, 2008, p. 120 taken from Worldwatch.

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implementing a water resources regulatory framework as part of a more comprehensive

sustainable development plan.

Figure 1. Key Concepts and Relationships Relating Sustainable Development and Water Resources Law

The People’s Republic of China has explicitly defined sustainable development goals as

part of its national strategy for environmental protection to combat the adverse economic and

social impact of critical water shortages, pollution and flooding. After reviewing the type and

nature of China’s water resources and water resource challenges, three essential aspects of a

regulatory framework for water resources management will be examined to support the

hypothesis that China is making progress towards implementing a plan of sustainable

development. The regulatory or legal framework for water resources management includes

robust legislation, well-developed and properly staffed administrative institutions and a system

of fair, impartial and accessible adjudication. A viable implementation of sustainable

development would not be possible without engaging various elements of civil society including

the citizenry, environmental activist groups, private industry, and domestic or international non-

governmental organizations and international government organizations. The many facets of

Citizens Businesses

Water Resource

Mgmt Challenges

Sustainable Develop-

ment

Regulatory Framework

cause motivate requires

Laws, Regulations, Guidelines, Standards, Education Monitoring, Measuring Environment, Outcomes

Enforcement, Penalties, Litigation Engaging Civil Society (legal standing, planning

(EIA), transparency)

modifies behavior includes

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civil society engagement in water resources management must be acknowledged, but a full

treatment of this topic lies outside the scope of the present analysis

Although the purview of environmental policy and action encompasses atmospheric and

terrestrial domains as well as the aquatic domain, the scope of the present study will be restricted

to consideration of freshwater resources only. The type and nature of China’s critical freshwater

resources will be outlined prior to identifying and characterizing the three major aspects of the

problem domain with respect to water resources: floods, pollution and scarcity. These

preliminary overviews will set the stage for a presentation and discussion of the three key

elements of China’s water resources regulatory framework – legislation, administration and

adjudication. Several approaches to assessing the maturity and effectiveness of a water resources

regulatory framework are discussed and conclusions are drawn regarding the status of China’s

efforts to implement a key portion of the nation’s plan for sustainable development.

Water Resources in China

Freshwater resources make up 0.2 percent of the world’s water supply. China contains

over one-fifth of the world’s population (~1.3B), but only eight percent of the world’s freshwater

resources lie within China’s borders (2.3 trillion m3).2 The per-capita water availability is 2,138

m3/person/year in China compared with 10,231 m3/person/year in the United States, so the

average Chinese citizen has access to five times less water supply than the average American

citizen.3 Over 1500 rivers with drainage areas exceeding 1000 km2 are spread across nine major

basins as illustrated in Figure 2. The extensive river system and the numerous lakes, reservoirs

and ground supplies that comprise China’s water resources are not at all evenly distributed

2 china.org. Available at: http://china.org.cn/english/environment/194221.htm (accessed September 28, 2009). 3 Gleick, Peter H. (Ed.) The World’s Water 2008-2009: The Biennial Report on Freshwater Resources. Island Press, 2009, p. 84; citing original source 2008 Food and Agriculture Organization of the UN AQUASTAT database. Available at: www.fao.org

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I Songhua-Liao River Basin VI Pearl River Basin II Hai-Luan River Basin VII Southeast River Basin III Yellow River Basin VIII Southwest River Basin IV Huai River Basin IX Northwest River Basin V Yangtze River Basin

Figure 2. Major River Basins in China4

across its 9.6 million km2 land area. Although much of the arable land is north of the Yangtze

River, only 19 percent of China’s water resources are located in this region.5 Four hundred

million Chinese live in, and depend on for their livelihood, the Yellow, Huai and Hai river

basins, but these basins contain less than 8 percent of China’s freshwater resources.6 The

distribution of water, both spatially and temporally, varies considerably across China whose land

4 Liu, Bin and Speed, Robert. “Water Resources Management in the People’s Republic of China.” Water Resources Development, Volume 25, number 2, (2009) p. 195 from Shen (2004). 5 Ibid, p. 194. 6 Ibid.

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area approaches 1 billion square kilometers (approximately that of the United States and third

largest after Russia and Canada). Rainfall varies significantly between regions and time of year,

but also varies from very rainy to very dry seasons, years or periods.

Population density, presented graphically in Figure 3, varies greatly across China and in

many cases, the water supply in a given location is insufficient for the population in that area.

The Chinese government has projected a 4 percent growth in population and increasing

urbanization for the period 2006 to 2010 which will invariably heighten water resources

management issues.7

Figure 3. Population density in China.

Water resources management concerns itself primarily with surface water and ground

water that are the most used and exploited for use by societies for a variety of purposes, chiefly

domestic consumption (for example drinking, hygiene), irrigation, manufacturing and power

7 The People’s Republic of China, The National Eleventh Five-year Plan for Environmental Protection (2006-2010). November 22, 2007. (English version release date: March 5, 2008). Available at: http://www.chinaenvironmentallaw.com/ (accessed September 24, 2009).

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generation. Sixty-five percent of China’s freshwater supply is used for agricultural purposes

with the balance being applied for industrial usage (which grew 236 percent from 1980 to 2007)

and domestic consumption (which grew 137 percent from 1980 to 2007).8 Taken together,

spatial incongruence between population and water supply, variable and unpredictable weather

patterns, population growth and increasing urbanization all portend heightened demands on a

relatively meager and dangerously problematic water supply.

Water Management Challenges in China

China’s water resources management challenges – scarcity, pollution and flooding – are

well documented.9 The catalog of problems and issues is extensive and includes severe

shortages of clean drinking water. According to the Organization for Economic Cooperation and

Development (OECD), water supplies for 400 to 600 (about half) of China’s major cities do not

meet minimum quality standards: “…hundreds of millions of Chinese are drinking water

contaminated with inorganic pollutants such as arsenic and excessive fluoride, as well as toxins

from untreated factory wastewater, inorganic agricultural chemicals, and leeching landfill

waste.”10 Excessive groundwater extraction, due to overdrawing aquifers, results in land

subsidence - massive physical depressions of land, sinkholes and uplifts. Additional

consequences of land subsidence include increased salination of groundwater supplies caused by

seawater intrusion making these sources unsuitable for drinking and agricultural irrigation.

Polluted water supplies are linked with the growing prevalence of “cancer villages” in

which a disproportionate number of residents in certain villages have contracted a variety of fatal

8 Liu and Speed (2009), p. 194. 9 Sun, X. Comprehensive Report of Strategy on Water Resources for China’s Sustainable Development. Beijing: The Editorial Group, 2002. 10 Gleick (2009), p. 81 referencing OECD Environmental Performance Review of China. Paris, France: Organization for Economic Cooperation and Development, 2007.

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types of cancer.11 Foul water is also linked to a number of water-related diseases, for example

intestinal worms such as hookworm, roundworm, and whipworm as well as typhoid.12 Fertilizer

and pesticides used for industrial and agricultural purposes contribute to growth of blue-green

algae that robs water of the oxygen that fish need for respiration resulting in massive fish kills

that adversely affect an important food source for many Chinese.13

The economic impact of floods and droughts in China over the past 20 years has been

significant. Drought has cost China $41B, over one percent of its average annual gross domestic

product (GDP),14 and economic losses from floods sum to almost two percent of the GDP.15

Contributing factors to the problems of extremes – too much or too little water – include the

extensive system of rivers in the Chinese landscape, the fact that so many live in floodplains, as

well as highly variable climatic patterns ranging from periods of torrential deluge to parching dry

spells.

China’s water resources challenges have direct costs as well as indirect costs in terms of

diminishing the nation’s production capacity, i.e., through damage to or infringement of critical

natural resources, and adverse impact on labor force required for industrial and agricultural

production activities. These costs, together with China’s increasing realization of the

“contradiction between socio-economic development and resources and environment constraint,”

pressure to comply with international norms and standards regarding the environment, and

wariness of potential inhibitors to “market access” have motivated the government of the

11 Lyn, Tan E. “China’s “cancer villages” bear witness to economic boom,” reuters.com, Thomson Reuters, September 16, 2009. Available at http://news.yahoo.com/s/nm/20090917/wl_nm/us_china_pollution_cancer (accessed September 25, 2009). 12 Gleick (2009), p. 85. 13 Ibid, p. 84. 14 China Daily, 2007. “Drought Nationwide Problem Now,” December 24, 2007. Available at: http://www.mwr.gov.cn/english/20071224/88527.asp (accessed October 1, 2009). 15 Xinhua, 2007. “Senior official: 41% Chinese to Live in Flood-prone Areas by 2020.” December 8, 2007. Available at: http://www.mwr.gov.cn/english/20071208/88352.asp (accessed October 1, 2009).

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People’s Republic of China to consider developing and implementing sustainable development

policies and practices.16 The increase in aggregate demand for high-quality freshwater resources

by Chinese citizens, industries and agricultural concerns, and the diminished prospect of meeting

these demands under present policies, has prompted the government to develop and promulgate a

comprehensive water resources regulatory framework. The basis for contemporary water

resources laws lies in China’s National Eleventh Five-Year Plan for Environmental Protection.

China’s Sustainable Development Plan

In the National Plan, the Chinese government has not minced words in declaring the

“grave” environmental challenges facing its nation and has acknowledged its failure to achieve

many environmental protection targets set by its leadership. Indeed, recent government

documents have highlighted ongoing environmental problems concerning water resources:

Among all surface water monitoring sections…26% fails [sic] to meet Grade V national surface water quality standard; 62% could not meet Grade III water quality standard. 90% of urban river sections are subject to pollution at different degrees; 75% lakes are subject to eutrophication. The quality of 30% drinking water source areas of key cities cannot meet Grade II standard…The aquatic eco-systems of many rivers have serious malfunction with loss of biodiversity…17

Although government efforts to achieve many ambitious environmental protection targets have

failed, a comprehensive plan nonetheless exists and is being pursued to improve rates of urban

sewage treatment, improve the quality of drinking water, prevent pollution of key river basins,

and mitigate diminishing species diversity. The plan explicitly links environmental protection

with sustained positive economic growth and further suggests that the nation’s increasing

economic viability enables it to more readily deploy environmental protection programs.

16 The People’s Republic of China, The National Eleventh Five-year Plan for Environmental Protection (2006-2010). November 22, 2007. (English version release date: March 5, 2008). Note: some parts of the English translation of the plan may appear awkward, but are nevertheless provided verbatim from the PRC government approved translation. Available at: http://www.chinaenvironmentallaw.com/ (accessed September 15, 2009). 17Ibid.

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Rhetoric aside, for example multiple references to the goal of enhancing the country’s “socialist

harmonious society”, the Chinese government has acknowledged the requirement for “…market-

based mechanism[s] in the field of environmental protection” in its “striving for [an]

environment-friendly society.”18

Invoking the spirit of its pre-eminent post-Mao reformer, Deng Xiaoping, the PRC

explicitly states its intention in the plan to “adhere to the basic national policy on environmental

protection and implement the strategy on sustainable development.”19 Key tenets of the

“philosophy, basic principle and plan objectives” include “comprehensive application of legal,

economic, technical and administrative methods to address environmental problems…[an]

enhance[d] environmental legal framework…strengthen[ing] the rule of law with comprehensive

control [with adherence] to administration according to law, continuously improve[ing]

environmental laws & regulations and strictly enforce[ing] these laws & regulations.”20

Additionally, the plan’s focus on increasing “public environmental awareness and participation”

and on implementing “a diversified input mechanism from the government, industry groups and

social groups” imply a desire to increase engagement with China’s civil society in order to

achieve the goal of sustainable development, i.e., “synchronization of environmental protection

and economic development” and “optimize[d] economic growth.21 The PRC government has

acknowledged dire threats to the integrity of the nation’s freshwater resources and has formally

declared its intentions and plans to address and neutralize these threats to enable sustainable

economic growth. Based on these assumptions, the stage is now set to explore the main

hypothesis that the PRC is in fact implementing the key objective of the comprehensive plan:

18 Ibid, section I. Environmental Situation. 19 Ibid. 20 Ibid, section II. Philosophy, Basic Principle and Plan Objectives. 21 Ibid.

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development of a robust regulatory framework including more systematic and effective means of

engaging various elements of China’s civil society.

Regulatory Framework

Individuals and various groups create water resources challenges for China’s society:

industrial organizations spew untreated wastes into rivers, some individuals consume enormous

amounts of water in inefficient ways and for non-productive purposes, dams are created that

deprive downstream farmers of access to water for crop irrigation, many individuals choose (or

are perhaps compelled) to live in flood prone low-lands. Correction of many of China’s water

resources problems requires changes in certain behaviors of individuals, social organizations and

institutions comprising China’s society. Among the factors that shape behavior of individuals

and organizations is government imposed compulsive regulation. A robust regulatory

infrastructure has three basic components, or sets of constitutionally-defined structures and

functions: the legislative, the administrative and the adjudicative. A portion of China’s legal

framework relating to water resources law is depicted in Figure 4. The legislative component

consists of a legislative body, well-defined mechanisms and processes for producing legislation,

and the legislation (laws, policies, rules, guidelines and standards) itself. The constitutionally-

designated National People’s Congress (NPC) represents the highest level legislative function in

China’s government structure.22 Administrative procedures, processes and personnel are no less

important in concretizing a legal framework. The State Council has the administrative authority

for implementing water resources law through various ministries and commissions primarily

through the Ministry of Water Resources (MWR) and the Ministry of Environmental Protection

(MEP). Finally, personnel, formal procedures and processes for adjudication and less formal

22 Article 2, The Constitution of the People’s Republic of China. Available at http://english.peopledaily.com.cn/consitution/constitution.html (accessed March 25, 2009).

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Figure 4. Structure and Relationship of China’s Legal Framework Relating to Water Resources23

mediation pertaining to legislation embody the third leg of the institutional regulation tripod.

Through its development of legislative action, administrative institutions and

adjudicative/mediation mechanisms, the government of the People’s Republic of China evinces

signs of an incipient, if not yet robust, regulatory framework for supporting its intention to

programmatically implement a plan of sustainable development.

Legislation

Water resources law is established by the NPC and is based on the Constitutional

assertion that water resources are property of the state.24 The NPC has enacted a set of three core

23 Reproduced from Liu and Speed (2009), p. 199. 24 The People’s Republic of China. Water Law of the People’s Republic of China (modified edition), Order of the President, No. 74, 2002. Available at: http://www.mwr.gov.cn/dlzz/2009english/01.pdf (accessed November 16, 2009), Article 3.

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laws pertaining to water resources management: the Water Law, the Law on Prevention and

Control of Water Pollution, and the Flood Control Law. Less weighty, yet important

contributors in their own right to establishing a regulatory framework, are additional laws that

include the Environmental Impact Assessment Law, the Law of the People’s Republic of China

on Water and Soil Conservation and the Environmental Protection Law. A detailed examination

of salient features of each of the three core laws will illustrate the comprehensive and robust

codification that serves as the basis for China’s water resources management regulatory

framework.

Water Law of the People’s Republic of China

Originally composed in 1988, the Water Law of the People’s Republic of China was

modified and adopted by the Standing Committee of the Ninth National People’s Congress in

2002. The modified Water Law (WL) contains 82 articles grouped into 8 chapters that cover

planning, development, utilization, protection, allocation, economic use, dispute settlement and

legal responsibilities associated with the management of water resources in China. The primary

purpose and goal of the law is stated in its first article:

This Law is formulated for the rational development, utilization, preservation, and protection of water, for the prevention and control of water disasters, and for the sustainable utilization of water resources in order to meet the needs of national economic and social development.

These words echo the sentiments expressed in the 11th Five Year Plan regarding China’s

relatively new focus on sustainable development. High level objectives of the Water Law

include provisions for comprehensive planning efforts, strengthening infrastructure,

conservation, implementing a water licensing (paid use) system, investments in research and

development, application of advanced technology, and organization of an administration by

watershed (major lakes and rivers).

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The Water Law also stipulates development of a strategic plan “formulated according to

the needs of economic and social development” (again hearkening to the desire to balance

continuing social and economic progress against the goals of environmental stewardship).25 The

Law further calls for coordination and collaboration between departments across “provinces,

autonomous regions and municipalities” with the proviso (explicitly reiterated dozens of times

throughout the document) that this coordination and collaboration be done “directly under [the

auspices of the] Central Government” and the State Council.26 Emphasis is also placed on

complementarity between the Water Law and other related legislation for example with the Law

on Prevention of Floods and the Law on Water and Soil Conservation (Article 17) and with the

Law on Prevention of Water Pollution (Article 81).

The Law calls for the conduct of scientific surveys, assessments and monitoring of water

resources (Article 16), conformity of construction projects with plan stipulations (Article 19),

and “…promoting benefits and eliminating disasters” for both urban and rural citizens across the

spectrum of domestic, agricultural, industrial, ecological and navigational uses and consumption

of water resources (Articles 20 and 21). Trans-boundary issues are treated, for example inter-

watershed diversion of water resources. Compensation or subsidies for those subject to

resettlement or other losses due to water projects, for example dam construction, are treated as

well. Measures for protection of species diversity of “aquatic creatures” are outlined in several

articles in the law as are provisions for maintaining conditions conducive to “bamboo and log

rafting” (Article 27) to protect an important means of transportation for rural inhabitants.

Regarding conservation and protection of water resources, several articles in the law provide for

25 Ibid. Article 14. 26 The fact that this proviso is reiterated so many times in the document points to the issue of central control (or lack thereof) that is of great concern to the ruling central Communist Party government which struggles to maintain control of the periphery (provincial and local governments, i.e., anywhere outside Beijing).

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strict controls on overdrawing groundwater (Article 36) and for application of advanced

technology to “…gradually eliminate the backward techniques, equipments [sic] and products

that consume a large amount of water” (Article 51).

Chapter VI of the Water Law – Settlement of Disputes (Articles 56-63) – is relatively

short, but importantly clarifies methods and processes of dispute resolution which is generally to

be accomplished by “consultation” or escalation (to the next highest governing authority).

Article 57 describes a key third alternative for resolution of disputes between governing “units”,

between individuals (Chinese citizens), or between government “units” and citizens: failing

resolution through consultation or escalation, parties to the dispute “may directly institute civil

proceedings in the people’s court.” The subsequent article (58) empowers governing authorities

to implement “temporary measures” or what amounts to injunctions to halt actions pending

settlement. The remainder of Chapter VI provides for authorities to do inspections and punish

violators of the Water Law (although enforcement follow-through is not addressed) and compels

“entities” subject to inspection to cooperate with authorities. The final article of Chapter VI (63)

implies that the department of water administration is self-policing (escalation only within the

organization): there is no reference to an outside authority in terms of checks and balances, but a

preceding article (57) and the subsequent chapter may obviate this apparent suggestion of

insularity.

Chapter VII regarding “Legal Responsibilities” explicitly threatens those engaging in

corruption with criminal charges and provides for stiff fines for violations of Water Law, for

example illegal construction of a water project, bridge, or dam, obstructing flow of a water

source, collecting water (or failing to), blasting, sinking a well, quarrying rock, earth or

otherwise diverting water resources without proper authority. Interestingly, Article 74 threatens

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criminal prosecution for those involved in a water dispute who “instigates trouble, fights in

gangs, forcibly seizes or damages public or private property, or illegally restricts the personal

freedom of others…” This provision appears to be intended as a warning both to activists or

protesters as well as to those who would resort to any kind of ‘strong-arming’ tactics to gain

advantage or suppress an opponent in any dispute related to water resources.

Law of the People’s Republic of China on the Prevention and Control of Water Pollution

The Law of the People’s Republic of China on Prevention and Control of Water Pollution

(PCWP) was originally adopted and implemented in 1984 (with 44 articles comprising seven

chapters) and subsequently amended in 1996 and in 2008 extending it to eight chapters with

more than a doubling (to 92) of articles.27 Water pollution is defined (in the law’s final article)

as “the introduction into a water body of any substance which alters the chemical, physical,

biological or radioactive properties of the water in such a way as to affect its effective use,

endanger human health, damage the ecosystem or deteriorate the water quality” (article 91). The

current law’s general provisions delineate the purpose and scope of the law (regarding

preventing and controlling water pollution and protecting drinking water sources) while echoing

the mandate of sustainable development of the Eleventh Five Year Plan that regulation shall be

guided or constrained insofar as economic and social development goals are promoted. Surface

and ground water resources (as regards industrial, “urban living,” and agricultural pollution) are

entirely within scope of the law whereas governance of marine pollution is specifically deferred

to the Marine Environment Protection Law of the People’s Republic of China. The general

provisions further identify accountable government organizations, advocate application of

27 Squire, Sanders & Dempsey, L.L.P. Law of the People’s Republic of China on the Prevention and Control of Water Pollution. Available at: http://www.chinaenvironmentallaw.com/wp-content/uploads/2008/03/water-pollution-prevention-and-control-law.pdf (accessed October 10, 2009).

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scientific research, mandate protection of the ecology and indicates that “Any entities and

individuals shall have the obligation to protect the water environment and shall have the right to

report any pollution or damage to the water environment” (Article 9).

The second chapter addresses standards and plans related to the prevention and treatment

of water pollution. Subsidiarity is encouraged in terms of provision to establish local standards

in the absence of applicable national standards as long as these are reported to higher authorities

(Article 11). Trans-boundary water issues are also covered in relation to “cross-province water

bodies of any major river and lake valleys” through concerted action of various agencies and

levels of government in the provinces, autonomous regions and municipalities (Article 12).

Mandates to establish water pollutant discharge standards is provided for in Article 13. In

keeping with the thread of sustainable development woven throughout the Chinese governments’

environmental regulatory framework, Article 15 implies that any plans are subject to “macro-

economic control,” perhaps leaving the option open for economic development objectives to

supersede environmental concerns.

Chapter III of the law which regards relevant supervision and management activities

begins by mandating environmental impact assessments (EIA’s) for all construction projects that

“directly or indirectly discharge pollutants to water bodies” (Article 17). Prior approval of

environmental impact statements for such projects with sewage outlets is required from any

number of governing authorities including water conservancy and fisheries administrations.

Article 18 specifies construction of a system for control and reduction of water pollutants within

targets and requirements for “total emissions per annum,” and further suggests that total

emissions will be regarded on a regional basis allowing for suspension of EIA’s if the overall

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regional emissions requirements are met.28 The remaining articles of Chapter III issue

provisions for waste discharge licenses, pollutant discharge fees (whose proceeds are to be used

only for pollution prevention and control), automated systems for monitoring water quality and

pollutant discharge, site inspections and immediate reporting of water environment findings.

Chapter IV of the law begins to detail substances subject to prohibited discharge

including oil, acid or alkaline solutions, radioactive wastes, over-heated wastewater, sewage

contaminated with pathogens, mercury, cadmium, arsenic, chromium, lead, cyanide and yellow

phosphorus. Prohibited also are various types of wells, pits, ditches, underground prospecting

and mining, as well as certain kinds of small-scale industries such as paper-making, tanning,

printing and dyeing, oil refining, electroplating whose discharges pose particularly harmful

threats to surface and ground water supplies. Articles 41 and 43 encourage adoption of “clean

technical processes” and discourage or prohibit “backward processes and equipment” (at least

those that are deemed antiquated, obsolete or otherwise inefficient and highly-polluting by the

“macro-economic control department” of the State Council).

Chapter IV also mandates construction, operation and administration of centralized urban

sewage piping and treatment facilities in addition to measurement and monitoring of effluent

quality (with certain sewage discharge fees subject to exemption based on unspecified criteria),

and construction of domestic, leak-proof landfills. Several articles control use of pesticides,

discharge of livestock wastes, breeding density parameters, bait and drug types used in

aquaculture. Article 48 even requires government authorities to provide guidance for applying

28 Definition or specification of regions is not provided in this document (or at least in this translation). Further research is required to determine the regional scope intended, whether based on provincial, prefecture, river basin, administrative district, etc.

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fertilizers and pesticides as prophylactic measures against water pollution. Section Five of

Chapter IV addresses water pollution from ships.

Various articles in Chapter V call for designation and protection of water source and

fishery protection zones and issue a number of prohibitions against certain activities, against uses

of phosphorous detergents, certain types of planting and breeding. Three brief articles

comprising Chapter VI cover treatment of water pollution accidents. These articles establish

mandates for both government and non-government enterprises and institutions to development

disaster management protocols (including preparation, emergency treatment and recovery) and to

implement them promptly in the event of an accident.

In contrast, twenty-one articles addressing legal liabilities comprise Chapter VII.

Penalties for administrative failures and violations of the law are enumerated therein for

stipulations and requirements specified in previous chapters. Among the transgressions for

which specific, arguably stiff, monetary penalties are assessed are failure to issue licenses,

refusal of supervision or inspection, refusal to report, submission of fraudulent reports, failure to

monitor pollutant discharge using automated technology, exceeding pollutant discharge limits,

operating without proper approval or licensing, failing to implement emergency plans for water

pollution accidents. The final set of articles in this chapter describes the mediation, litigation and

appeal processes concerning water resource management legal issues. The PRC government, in

Article 88, even “encourages legal service institutions and lawyers to provide legal assistance for

the aggrieved parties in ligations of water pollution damage.”

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Flood Control Law of the People’s Republic of China

The structure of the Flood Control Law of the People’s Republic of China, adopted and

promulgated in 1997, parallels the same general format as the two laws reviewed above.29

Following the general provisions, subsequent chapters address flood control planning,

prevention, administration of control areas and works, flood fighting, guarantee measures, legal

liability and supplementary provisions comprising in all eight chapters and a total of 66 articles.

Also, as with previously discussed laws, the Flood Control Law (FCL) pays homage to one of

the core elements of sustainable development characterized here as “…safeguarding the smooth

progress of the socialist modernization construction” (Article 1) and complying with “national

economic and social development plan[s]” (Article 3). Some general principles and

characteristics of the FCL include provisos for “subordinating local interests to general interests”

(Article 2), establishing hierarchies of authority, rules of jurisdiction (inter-agency, provincial,

regional, municipal, etc.), distribution of responsibilities, inter-agency coordination, and multiple

references to the ultimate controlling authority of the Central Government.

Chapter II of the FLC addresses its “objects, aims and tasks” which include prevention of

storm tides, landslides, mud-rock flows, diversion of river flows, flood drainage channels,

drainage piping and pumping stations concerned with flood mitigation and control. “Planned

reserve zones” may be established to limit construction or certain kinds of activities conducive to

flooding or that may hamper flood control measures and provision is made for formulating flood

control plans for specific estuaries of the Yangtze, Yellow, Pearl, Liao, Huai, and Hai Rivers.

Chapter III refers, in part, to flood prophylaxis measures such as use of “forest, grass and other

vegetation,” protecting embankments, and prohibiting river diversion, and seeks to protect

29 Ministry of Agriculture, The People’s Republic of China. Flood Control Law of the People’s Republic of China. Available at: http://english.agri.gov.cn/ga/plar/200906/t20090623_1118.htm (accessed October 11, 2009)

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bamboo and log rafting and fisheries in the course of applying flood control measures. As with

other water resource laws, the FLC addresses trans-boundary issues (Article 21) involving “two

or more provinces, autonomous regions or municipalities.” The law governs construction

projects, such as for “bridges, wharves, roads, ferries, pipelines, cables,…” which are subject to

examination and approval procedures and must conform to flood control standards.

Chapter IV of the FLC opens with definitions of flood control areas, flood storage and

detention areas, and further regards various administrative issues associated with flood control

such as setting up hydrology, meteorology and communications infrastructure and monitoring

and early warning systems. Article 32 provides for moving residents from flood plains and for

compensation and aid for flood storage and detention areas. Subsequent articles provide for

flood impact assessments (for construction of oilfields, railways, highways, mines, power plants,

etc.) within flood detention and storage areas and require inspection, supervision and

administration of dams and reservoirs (including requirements to conform to “anti-earthquake

defence” standards). Chapter V addresses “flood fighting” measures and includes a provision to

leverage military, police and militia resources for fighting floods and conducting emergency

operation and concludes with the cryptic statement that “The state encourages and supports the

flood insurance” (Article 47). The status of the flood insurance industry in China may be

questioned given that the issue of flood insurance is problematic even for well-developed

countries like the United States in terms of availability, affordability and extent of coverage of

losses.

Chapter VI of the FLC mandates financing directives and provides allocation guidelines

for flood fighting, prevention and recovery. Article 52 interestingly compels local governments

to provide compulsory village labor “for the construction and maintenance of flood control

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works.” Chapter VII Legal Liability delineates infractions and associated penalties in much the

same fashion as similarly-named sections in the Water Law and Environmental Protection Law

reviewed above. Fraud, pilfering, incompetence and general corruption are explicitly prohibited

and are subject to fines and/or criminal liability.

The Environmental Impact Assessment Law and Other Relevant Laws

The Law of the People’s Republic of China on the Environmental Impact Assessment

(Environmental Impact Assessment law or EIA, 2002)30 “has been enacted for the purpose of

carrying out the strategy of sustainable development” (Article 1). The EIA’s five chapters and

thirty-eight articles describe the “methods and institutions for analyzing, predicting and

appraising the impacts of programs and construction projects so as to propose countermeasures

for preventing or mitigating the unfavorable impacts and make follow-up monitoring” (Article

2). Notably, two different articles advocate inclusion of input, feedback and opinions from the

“general public” in addition to “relevant entities and experts” (Articles 5 and 11). Environmental

impact assessments are required to categorize impact according to level – “significant,” “gentle,”

or “very small” (Article 16), must include analysis of the “economic gains and losses” (Article

17), and must incorporate water conservancy plans where applicable. Administrative chain of

authority and application of subsidiarity are established in subsequent articles as are penalties

and fines for abrogation of responsibilities and corruption by government authorities and for

violations of environmental impact rules and regulations.

30 China Environmental Law. Ed. Charles McElwee. 2009. chinaenvironmentallaw.com. Law of the People’s Republic of China on the Environmental Impact Assessment. Available at: http://www.chinaenvironmentallaw.com/wp-content/uploads/2008/03/environmental-impact-assessment-law.doc (accessed October 15, 2009).

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Explicit regulations providing for and governing public participation in the EIA process

are documented in the four chapters and thirty-four articles that comprise the “Measures of the

State Environmental Protection Administration on Public Participation in Environmental Impact

Assessment.”31 The document, whose purpose is to “promote and standardize public

participation in environmental impact assessment,” is based on the principles of “openness,

equality and broadness.” Provisions are made requiring public notice, obligations of disclosure,

and gathering of input from “surveys, expert consultancy, workshops, discussion meetings [and]

hearings.” The scope of participation in EIA proceedings is quite broad as specified in Article

13 which encompasses:

…social organizations, residents committees, villagers committees and other grassroots-level people’s self-governance organizations, individual residents, residents representatives or lawyers entrusted by residents, experts in the relevant fields and units and individuals concerned with the public’s environmental rights and interests who are located in the areas affected by the construction projects…and who might be impacted environmentally…

The remainder of the document offers more detailed specifications regarding protection of rights

to participate in the EIA process as well as rules governing public opinion surveys, expert

consultancies, and the conduct of workshops, discussion workshops and hearings. Additional

laws, for example The Law of the People’s Republic of China on Water and Soil Conservation

(1991)32 and the Environmental Protection Law of the People’s Republic of China (1989)33

duplicate much of the content of the Water Law, the Prevention and Control of Water Pollution

31 Moorman, Jesse L. and Zhang, Ge. “Promoting and Strengthening Public Participation in China’s Environmental Impact Assessment Process: Comparing China’s EIA Law and U.S. NEPA.” Appendix B. Measures of the State Environmental Protection Administration on Public Participation in Environmental Impact Assessment. Vermont Journal of Environmental Law, Volume 8, Number 2, 2006-2007. 32 The People’s Republic of China Ministry of Water Resources. Law of the People’s Republic of China on Water and Soil Conservation. Available at: http://mwr.gov.cn/dlzz/2009english/05.doc (accessed October 14, 2009). 33 The People’s Republic of China Ministry of Water Resources. Environmental Protection Law of the People’s Republic of China. Available at: http://mwr.gov.cn/dlzz/2009english/02.doc (accessed October 14, 2009).

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Law, and the Flood Control Law and appear to be more statements of direction as opposed to

bases for a substantive regulatory framework.

Considerations of scope and length preclude a full examination of the extensive

conglomeration of national laws, administrative regulations, departmental rules and local

regulations and rules pertaining to China’s water resources regulatory framework. The

preceding review of salient aspects of key national laws was intended to convey the depth and

breadth of the kinds of water resources legislation from which provincial and local rules and

regulations derive their authority, form and content. National laws are properly viewed as

framework constructs under which numerous, perhaps thousands, of specific policies, rules,

regulations and standards are constructed and operationalized by subsidiary government

institutions (recall the layered, distributed structure of China’s legal framework depicted in

Figure 4 above). It is to an examination of two of these major institutions, the Ministries of

Environmental Protection and Water Resources, that we now turn our attention.

Administration

Administration of water resources law is implemented in a layered, distributed fashion

through national regulations developed and enacted by the State Council, local laws and

regulations developed by provincial government representatives, and cross-cutting national,

provincial and local rules developed by various ministries and departments, chief among them

the Ministry of Water Resources and the Ministry of Environmental Protection.34 The Ministry

of Water Resources (MWR) was founded in 1949, but its modern form dates to major

34 Liu and Speed (2009), p. 199.

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institutional reforms enacted by the PRC government in 1988.35 The MWR has a broad mandate

and a sweeping scope of responsibilities:

Ensure water resources are rationally developed and utilized; formulate water resources development strategies, plans and policies; provide draft legislations and promulgate water administrative rules and regulations; make integrated river basin management plans and flood control plans for major rivers and lakes. Make proposals of total investment and water projects with fixed assets and plans of national fiscal funds, review and verify fixed assets investment projects within the national plan and the scale of a yearly plan in accordance with the authorization grated by the State Council. Put forward and organize the implementation of water project investment plan of the Central Government.36

Notably, the Water Resources Minister, Mr. Chen Lei, and five of the seven principal officials of

the ministry hold PhD’s or Master’s degrees in hydrology or other engineering disciplines. The

Ministry is composed of twelve departments (with responsibilities such as planning, policy

development, finance, conservation, irrigation, flood control, hydropower and international

cooperation), seven river basin commissions and fourteen diverse bureaus and commissions

concerned with such topics as hydropower, water transfer, development and research.37

One of the key sections of the MWR is the Department of Policies, Laws and Regulations

whose charter is to “draft and implement programs and an annual plan of water legislation,

formulate laws and regulations and coordinate the legislative process”, engage in publicity and

education regarding water-related laws and regulations, develop and operate a water licensing

system, and handle administrative litigation. The MWR generates an annual report that includes

data on central government investment in waterworks and water-related activities (31B yuan in

2007, a 3.38% increase over 2006) with investments in water resource projects (46% of total),

35 Ministry of Water Resources of the People’s Republic of China. Available at: http://www.mwr.gov.cn/dlzz/2009english/history.aspx (accessed October 5, 2009). 36 Ministry of Water Resources of the People’s Republic of China. Available at: http://www.mwr.gov.cn/dlzz/2009english/aboutmwr.aspx (accessed October 5, 2009). 37 Ibid. http://www.mwr.gov.cn/dlzz/2009english/departments.aspx (accessed October 5, 2009).

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flood control (40% of total) and the balance in soil and water conservation and ecological

recovery. The report includes a list of achievements in the areas of flood control, water

resources management, soil and water conservation, irrigation, drainage, rural water supply and

rural hydropower development. The report outlines key tasks of the MWR such as construction

of basic waterworks on farmland, reinforcement and construction of defective reservoirs, flood

control and drought relief. Numerous facts and statistics regarding the development and use of

water resources are reported as is a summary of water resources quality measures. The MWR’s

Bureau of Hydrology maintains a website that contains a vast array of up-to-date information on

river and rainfall activity, and meteorological information such as river and reservoir levels and

flow rates (from real-time monitoring stations), and information (including maps) on “hotspots”

where river levels may be rising to warning levels.38 The website offers detailed rainfall,

drought and storm information for all geographic areas including some of the remote western

regions.

China’s environmental protection agency was founded in 1978, renamed several times

since its inception, became a ministerial level government function in 1998, and was restructured

and renamed from the State Environmental Protection Administration (SEPA) to its current

official designation as the Ministry of Environment Protection (MEP).39 Of the twelve

departments and bureaus comprising the MEP, one is the Department of Pollution Control which

features four divisions concerned with management of water resources: the Division of Water

Environmental Management, the Division of Environmental Management for Major River

Basins, the Division of Drinking Water Resources Protection, and the Division of Marine

38 The Bureau of Hydrology (Information Center of Water Resources) of the Ministry of water Resources of P.R.C. Available at: http://xxfb.hydroinfo.gov.cn/EN/eindex.jsp (accessed October 17, 2009). 39 Yang Xi, “SEPA gets stronger”, china.or.cn, March 10, 2008. Available at : http://www.china.org.cn/environment/news/2008-03/10/content_12143406.htm (accessed October 5, 2009).

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Environmental Protection.40 The MEP divisions that are concerned with water resources

develop and publish a number of standards and reports.

MEP standards concerning water quality, discharge, methodologies and references are

specified and elaborated in on-line formats.41 Standards of quality for surface water, ground

water, fisheries and irrigation have been specified. Ground water quality standards include, for

example, classification scheme for assessing quality, monitoring methods, prospecting for water,

use and management parameters.42 Pollution discharge limits are listed for specific industries,

such as for coal production, beer-making, medical institutions (to safeguard against spread of

infectious diseases through water sources), as well as for manufacturing processes that produce

specific pollutants such as monosodium glutamate, citric-acid and sapogenin (which is used for

medicinal purposes such as dietary supplements). Method standards include a number of

technical specifications for example regarding the performance characteristics and calibration of

devices designed for automatic sampling and assay of water, industrial effluent and sewage

discharge, and techniques for determining chlorine ion concentrations using

spectrophotometry.43 Reference standards include various technical requirements such as those

for monitoring ammonia nitrogen in surface water and water turbidity as well as guidelines for

delineating and protecting surface and ground drinking water sources.

40 Ministry of Environmental Protection of the People’s Republic of China. Available at: http://english.mep.gov.cn/About_SEPA/Internal_Departments/200707/t20070705_106262.htm (accessed October 5, 2009). 41 Ministry of Environmental Protection of the People’s Republic of China. Although abstracts are available in English for these standards, technical details appear to be available only in the Chinese language at this website. Available at: http://english.mep.gov.cn/standards_reports/standards/water_environment/ (accessed October 5, 2009). 42 Ibid, quality standard. Available at: http://english.mep.gov.cn/standards_reports/standards/water_environment/quality_standard/200710/t20071024_111790.htm (accessed October 5, 2009). 43 Ibid, method standard Available at: http://english.mep.gov.cn/standards_reports/standards/water_environment/method_standard2/200807/t20080704_125025.htm (accessed October 5, 2009).

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The MEP engages in cooperation on water resources issues with a number of

international (The Nature Conservancy, UNEP, ASEAN) and regional organizations and bilateral

exchanges (for example exchanging water pollution prevention and control technologies with

Russian expert counterparts).44 The MEP participates in a number of international conventions

(intergovernmental treaties) such as the Ramsar Convention on Wetlands part of which focuses

on protecting waterfowl habitats).45

The Ministry of Water Resources has the primary responsibility for managing China’s

water resources in cooperation and collaboration with many other administrative functions.46

Local Water Resources Management Departments have the responsibility for water

administration in each of China’s 27 provinces in association with provincial Water Resource

Bureaus. Subsidiary organizations include Water Resources bureaus at the prefecture and county

levels and finally, city, township and village-level water resources administration functions.

Cooperating with the national Ministry of Water Resources in the administration of water

resources are the Ministries of Geology and Mineral Resources, Agriculture and Construction.

National government agencies such as the MEP and MWR issue high-level policy and

regulation and have overall responsibility for investigation and enforcement, but many of the

day-to-day functions of environmental monitoring, assessment and application of regulation

takes place at the provincial level by Environmental Protection Bureaus (EPB’s).47 Furthermore,

“While national laws and rules set the principles, these requirements are often general in nature

44 Ministry of Environmental Protection of the People’s Republic of China. Available at: http://english.mep.gov.cn/international_cooperation/ (accessed October 5, 2009). 45 Ramsar Convention on Wetlands of International Importance, especially as Waterfowl Habitat. Available at: http://www.ramsar.org (accessed October 5, 2009). 46 FAO-Forestry. AQUASTAT Country Profile: China. United Nations Food and Agriculture Organization. Available at: http://www.fao.org/NR/WATER/AQUASTAT/countries/china/index.stm (Accessed November 16, 2009). 47 Goldman, Patti. “Public Interest Environmental Litigation in China: Lessons Learned from the U.S. Experience.” Vermont Journal of Environmental Law, Volume 8, 2006-2007.

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and local governments usually have discretion in how these are implemented.”48 It is at the local

and provincial levels of water resources governance that many of the conflicts of interests

surface which require resolution through mediation or adjudication.

Adjudication and Mediation

Regulation, by definition, is intended to guide, curb or otherwise moderate the behavior

of individuals and organizations among which conflicts of interest arise, such conflicts

necessitating the existence of regulation in the first place. Conflicts of interest with respect to

water resources are addressed, as are other issues of contest in rule-of-law societies, through the

process of adjudication and mediation. Adjudication is the hearing and settlement of a case

between disputing parties through judicial procedures. Mediation and alternative dispute

resolution (ADR) are non-judicial or pseudo-judicial mechanisms for addressing and resolving

conflicts of interest. Rather than an exhaustive review of China’s system of legal adjudication,

several examples of advances in the adjudicative process involving water resources will be more

productive in characterizing the evolving status of environmental litigation China.49 Progress is

evident in regard to several areas of environmental adjudication including conditions of liability,

burden of proof, statute of limitations, remedies, class actions and litigation costs.

Cases involving compensation for pollution, the majority of environmental litigation

cases, do not require plaintiff (the litigant seeking compensation) to demonstrate that the

defendant has violated emissions standards set by law, nor is liability contingent on actual

violations of the law (no-fault liability).50 In fact, the burden of proof is reversed in pollution

48 Liu and Speed (2009), p. 199 citing Wouters, et al., 2004. 49 Overviews of the contemporary judicial system in the People’s Republic of China may be found in Chow, Daniel C.K. The Legal System of the People’s Republic of China, Thomson-West, 2003 and in Clarke, Donald C. (Ed.) China’s Legal System: New Developments, New Challenges. Cambridge University Press, 2008. 50 Wang, Alex. “The Role of Law in Environmental Protection in China: Recent Developments.” Vermont Journal of Environmental Law, Volume 8, 2006-2007, p. 208.

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compensation cases: the alleged polluter carries the burden of proving “the lack of causal link

between [its] actions and the harmful result.”51 The usual 2-year statute of limitations for tort

cases, those involving damage of some kind to plaintiffs, has been extended in environmental

protection law to 3 years from the realization of losses due to pollution. Environmental

protection law provides for a variety of remedies including compensation, restoration (clean-up

or repair of damage), cessation, i.e., stoppage of actions causing harm, elimination of potential

dangers, and even “emotional damages” which are usually described as “pain and suffering.”

Class action lawsuits, provided for in China’s 1991 Civil Procedure Law, offer an attractive

alternative for victims of water pollution which typically affects a large number of people. In

addition, the relatively high costs of litigation can be spread across plaintiffs who individually

would be unable to cover court costs, fees for attorneys and experts and other ancillary costs of

litigation. Despite “dramatically increasing environmental disputes and civil litigation in

general” in China, a disproportionately small number of environmental cases are litigated.52 A

plausible reason for the dearth of cases of environmental litigation may be the existence of

various forms of administrative and court-performed mediation and mechanisms of alternative

dispute resolution (ADR) that operate in China’s legal milieu to mitigate the expense, time and

personnel resource demand required of formal litigation:

…the vital role played by mediation committees in settling environmental disputes tends to be overlooked by Western scholars analysing processes of environmental dispute resolution. There is evidence that a great deal is done by way of environmental dispute resolution at the local level by people’s mediation committees.53

51 Ibid, p. 209. 52 Liu, Jingjing. “Environmental Dispute Resolution in China.” Presentation at the Vermont Law School NAELS Conference. March 21, 2008. Available at: http://www.vermontlaw.edu/admin/Documents/032108-naelsChinaPanelLiu.pdf (accessed November 3, 2009). 53 Palmer, Michael. “Environmental Regulation in the People’s Republic of China: The Face of Domestic Law.” The China Quarterly, Number 156, 1998, p 805.

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Jingjing Liu, Associate Director for the US-China Partnership for Environmental Law at

the Vermont Law School outlined the following highlights resulting from a comparative study of

mediation systems applied to environmental dispute resolution in China.54 Whereas alternative

dispute resolution (ADR) trends in the United States date back to the 1960’s, ADR has been a

part of China’s culture for more than 2,000 years. Based on the Confucian principles of harmony

and compromise, mediation assumes three forms in China’s legal system: court-performed

mediation, People’s mediation and administrative mediation. In the former, a judge mediates a

case and renders a decision tantamount to an adjudication award which usually cannot be

appealed. In the second form, People’s Mediation Committees operate under the auspices of

local courts to offer mediation of disputes free of charge to plaintiffs. According to Liu, these

mediation committees moderate approximately seven million cases each year achieving a

remarkable 90% rate of agreement. Settlements reached through the less-common administrative

mediation process are not subject to judicial review. Accessibility to courts and legal standing

are two other key criteria applicable to judging the robustness of a system of adjudication.

Provision is made in PRC’s laws pertaining to water resources for individuals and organizations

to pursue legal recourse and remedies against violators of these laws (see for example Chapter

VI, Article 88 of the Water Pollution Control Law and Articles 5 and 11 of the Environmental

Impact Assessment Law).

Assessing China’s Water Resources Regulation Efforts

China’s water resources regulatory framework can be assessed from three different

perspectives or frames of reference. The first relates to the general process of legal reform, the

second involves a comparative analysis and the third considers various outcomes. The

54 Liu and Speed (2009).

30

development and evolution of China’s water resources regulatory framework follows the general

sequence of legal reform hypothesized by Carothers. Carothers outlined three types of legal

reform referred to as Type I, Type II and Type III reforms. “Depth of reform,” according to

Carothers can be characterized as Type I – reform that focuses exclusively on laws, codes and

regulations themselves, Type II – transformational reform focused on “strengthening of law-

related institutions” to create “more competent, efficient, and accountable” institutions, and Type

III – reform associated with the “deeper goal of increasing government’s compliance with law”

in the interests of achieving meritocratic governance, transparency and accountability.55 At what

stage is China’s water resources regulatory framework in Carothers’ scheme? What types of

reform are evident?

The broad range and depth of the laws and statutes enacted by PRC legislative regulatory

bodies, a portion of which was reviewed above, indicates that China indeed has made significant

progress in achieving Type I reforms. Literally thousands of rules, regulations, laws and statutes

pertaining to water resources regulation have been codified over the last several decades

implying a serious intent by the government of the People’s Republic of China to address and

rectify problems of flooding, scarcity and pollution of water supplies. According to Carothers,

changes, revisions and amendments to the legislative and constitutional body of China’s legal

doctrine are the “easy” part of legal reform. The second of the three phases of reform described

by Carothers, effecting change in institutional structure and process (Type II reform) is the hard

part and is more complex. Difficulty in transformation can be exacerbated by corruption and

entrenched bureaucratic organizations.

Rewriting constitutions, laws, and regulations is the easy part [of legal reform]. Far reaching institutional reform, also necessary, is arduous and slow. Judges, lawyers, and bureaucrats must be retrained, and fixtures like court systems, police

55 Carothers, Thomas. “The Rule of Law Revival” Foreign Affairs, Volume 77, Number 2, 1998, pp. 99-100.

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forces, and prisons must be restructured. Citizens must be brought into the process of conceptions if law and justice are to be truly transformed.56

Although an extensive bureaucracy has been established by the PRC government for applying

and administering water resources regulations, serious shortcomings remain in the

implementation of these institutions and their respective processes. Deficiencies in

environmental law enforcement are a particularly troublesome area for China despite an

“abundance” of environmental laws and regulations. Due to “…a lack of proper adherence and

enforcement… legislative objectives remain unachieved, enforcement is superficial; excessive

time exists between noncompliance and enforcement; available punishment for noncompliance is

inadequate; injured parties are not properly compensated; and some environmental crimes

receive administrative instead of criminal punishments.”57 Carothers’ hypothesis regarding the

difficulty of institutional reform certainly appears to be born out in the PRC governments’

attempt to implement a water resources regulatory framework. In contrasting framework

development with action, other researchers have suggested the presence of “a wide gulf between

theory and practice.” These researchers have noted specific shortcomings:

Water allocation plans have not been completed in many basins, and where they do exist there can be inconsistencies between plans at the regional and basin levels. In many regions, annual regulation plans are not prepared at all…Despite requirements under the 2002 Water Law for metering and monitoring…only 50-70% of water abstractors have meters installed…Discharges into watercourses are poorly monitored…[and] the implementation of water function zones remains at an embryonic stage.”58

Additional opportunities for improving the nascent regulatory system may be found in the

adjudicative process. Inhibitors to effective adjudication remain, such as insufficient access to

56 Ibid, pp. 95-96. 57 Canfa, Wang. “Chinese Environmental Law Enforcement: Current Deficiencies and Suggested Reforms.” Vermont Journal of Environmental Law, Volume 8, 2006-2007. 58 Liu and Speed (2009), p. 206.

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courts, difficulties in achieving legal standing. Advances in legal standing for citizens and other

entities, for example environmental NGO’s like the group Friends of Nature,59 are gaining

traction. PRC authorities have expressed interest in learning lessons from the US experiences

concerning public interest environmental litigation by means of legislative and judicial action as

well as through mechanisms for engaging civil society such as environmental impact assessment

procedures and protocols.60 Due to a dependence on context, assessing the results of regulation

and legal reform is necessarily a subjective endeavor, and depends on the frame of reference

chosen.

Is progress in reform to be examined relative to history of changes in status of laws and

regulations in the same society over a certain period of time or with respect to those of other

societies, nations or regions? Should a comparative analysis of China’s evolving water resources

regulatory framework be done in relation to other countries, which should be selected for

analysis: similar developing nations, moderately-developed nations or highly-developed

nations? The development of China’s water resources regulatory framework (laws, institutions,

etc.) has progressed markedly starting from the inception of the People’s Republic in 1949 and

has accelerated significantly during the post-Mao period through present day. Compared with

some other developing countries with large numbers of indigent citizens in Southeast Asia and

Sub-Saharan Africa, China appears to be quite advanced in its efforts and sophistication in terms

of its water resources regulatory framework despite many well-documented deficiencies and

shortcomings. In contrast, China falls far short of the degree of maturity and sophistication of

59 Wang, Alex (2006-2007), p. 221. 60 Goldman, Patti. “Public Interest Environmental Litigation in China: Lessons Learned from the U.S. Experience.” Vermont Journal of Environmental Law, Volume 8, 2006-2007.

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water resources regulatory frameworks – as well as of environmental regulation in general –

found in highly developed, highly-industrialized countries of the Occident.

A third perspective on assessing the robustness of water resources regulatory frameworks

focuses on specific outcomes, i.e., measurable results. Discerning specific outcomes of

implementations of sustainable development plans is a complicated process, especially in regard

to the economic component. Environmental outcomes may be no less complex in defining and

measuring, however, a few specific indicators have been identified and used as concrete,

operationally-defined measures of effective water resources management frameworks. A

department of the United Nations Department of Economic and Social Affairs (UNESCO), the

UN-Water Task Force on Indicators, Monitoring and Reporting, has developed and proposed a

set of indicators pertaining to four different aspects of water resources: context (water

availability or situation of scarcity), function (intensity of water usage, sustainability),

performance (effective use of water), and governance.61 An example measure of water

availability is total actual renewable water resources (TARWR) in units of cubic meters per

capita. One measure of intensity of water usage is percentage of TARWR that is used.

Measures of effective water use include percentage of population using improved drinking water

resources and percentage of the population using improved sanitation facilities. Governance

measures include global, regional and national indices such, respectively, participation in

international environmental conventions and treaties, participation in Transboundary regional

agreements relevant to the water sector, and implementation of policies in support of the “3 ‘E’s

objective: equity, economy, [and] environment” such application of Integrated Water Resources

61 UN-Water Task Force on Indicators, Monitoring and Reporting. “UN-Water Activities: Set of key indicators for water sector.” United Nations Department of Economic and Social Affairs website available at: http://www.unwater.org/indicators.html (accessed November 16, 2009).

34

Management (IWRM) protocols. The Food and Agriculture Organization (FAO) of the United

Nations has begun to populate and maintain an extensive country database of environmental

variables called AQUASTAT that includes values for these key indicators.62 Each of these

indicators was selected for measurability and availability as relevant descriptors of major water

issues. Although “the quality of the data sets varies and are not [yet] able to indicate trends,”

collection and analysis of these data represent a promising approach for quantifying and

objectifying the outcomes of water resources legislation and policy.

Conclusion

The evidence gathered and presented herein suggests that the development of a water

resources regulatory framework in China mirrors the path of China’s progress in legal reform in

general in the post-Mao era of rapid development: a pattern of halting progress and fits and

starts that can be characterized as “steady development and striking continuities”.63 China’s

progress towards a more effective system of environmental regulation parallels its movement

toward a more complete rule-of-law system which has been described as an “evolution [in its]

early stages, moving at a variable and inconsistent pace, [and] depending on the geography, the

subject matter, and the point in time.”64 An extensive set of legislative actions are being

implemented through evolving, yet far from mature, administrative and adjudicative functions a

phenomenon to be expected vis-à-vis Carother’s hypothesis regarding the inherent difficulty of

institutional reform. Both formal and informal mediation appear to be used pervasively and

successfully to resolve water resources disputes, yet serious inhibitors remain to formal

62 Food and Agriculture Organization (FAO), AQUASTAT. United Nations. Available at: http://www.fao.org/NR/WATER/AQUASTAT/main/index.stm (accessed November 16, 2009). 63 Clarke, Donald C. (Ed.) China’s Legal System: New Developments, New Challenges. Cambridge University Press, 2008. 64 Goldman (2006-2007).

35

adjudication such as inability to access courts and insufficient support for legal standing. A more

comprehensive review of the many case studies available that relate to water resources issues

would be fruitful in assessing the effectiveness of China’s regulatory initiatives, alas is beyond

the scope of the study but may be fertile ground for future research.65

Scrutiny of China’s performance in pursuing its sustainable development objectives

represents further research opportunities. The matter of determining appropriate assessment

criteria is crucial to this analysis as observed above and any assessment must necessarily be

qualified by the method and units of analysis. Comparative analyses my include country-to-

country comparison and contrast or a longitudinal study. Specific, measurable variables of

environmental stewardship pertaining to water resources scarcity or quality must be weighed

against economic variables and tradeoffs to render a complete picture of sustainable development

outcomes.

Sustainable development is a process that embodies effective collaboration and

cooperation between legislative and regulatory institutions and various elements of civil society

for the purpose of balancing economic growth and environmental stewardship to achieve

optimized human security outcomes. The second of the two crucial ingredients of sustainable

development is an empowered civil society which together with enabling legislation and

regulatory infrastructure can balance the equation of economic development with environmental

stewardship. The interplay of a government’s environmental policy and regulatory agencies with

both public and private economic development interests invariably results in conflict.

Developers and regulators possess inherently diverse objectives: the former in pursuit of

economic growth and development and the latter in pursuit of environmental integrity. The

65 See for example Liang, Congjie and Yang, Dongping (Eds.) Part Three Case Studies. The China Environment Yearbook (2005), Social Sciences Academic Press, 2007, pp. 331-434.

36

inevitable conflicts between sound environmental policy and economic development interests

must presumably be resolved to the mutual satisfaction of developers and regulators for China to

be considered to have an effective program of sustainable development. A final suggestion for

further research involves a rigorous investigation of the roles of members of China’s civil society

– individuals, legal firms, non-governmental organizations, and private sector businesses as well

as international governmental organizations – and the dynamics of their interaction in shaping

and modulating the evolution of China’s water resources regulatory framework. Institutions

such as the All China Environment Federation, the China University of Political Science and

Law-sponsored Center for Legal Assistance to Pollution Victims (CLAPV), the China Green

Student Forum, local communities, UNESCO, the World Bank and transnational corporations

(TNC’s), are playing significant roles in furthering the cause of water resources regulation.

Many of these actors figured prominently in the development of Shanghai’s remarkably

sophisticated water policy management system.66

By its own admission, the PRC government has acknowledged the dire (“grave”)

circumstances of their environmental challenges. While acknowledging missed targets and

shortcomings, the PRC also celebrates milestones and progress in its quest to build the integrity,

credibility and effectiveness of its water resources regulatory institutions. That China has

succeeded in lifting millions of its citizens out of the grip of poverty over the last several decades

is indisputable. But the rise of so many Chinese to a higher standard of living has not come

without cost. China’s over-riding emphasis on economic development was not adequately

balanced with effective environmental stewardship. Aquatic, terrestrial and atmospheric

66 Lee, Seungho. Water and Development in China: The Political Economy of Shanghai Water Policy. World Scientific, 2006.

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resources have been degraded during the period of rapid economic growth due to a seemingly

complete disregard of environmental impact and the longer-term welfare of China’s citizens.

Amelioration of many of China’s problems in water resource management can be

achieved through regulatory intervention. Regulation intervention, in turn, is effective only if

sufficient administrative and enforcement infrastructure exists to implement the regulations and

civil society is engaged in partnership with the government. China has embarked on the path to

achieve the goal of a robust water resources regulatory framework. It may be concluded that the

cup is half full – that China has come a very long way in a relatively short period of time with

respect to building such a framework. It may also be conjectured that environmental stewardship

of China’s water resources will increase commensurately with the nation’s degree of prosperity,

i.e., to the extent that China can afford to invest in the cost of stewardship without losing its

“competitive advantage in industrial production.”67

Environmental issues relating to resources of air, earth and non-freshwater resources

(oceans for example) are no less important, and the relationship of pertinent legal frameworks

and an engaged civil society to management of these are certainly worthy of consideration as a

function of achieving operating modes of sustainable development. The interdependence of air,

earth and water resources is unquestionable as even a cursory understanding of the hydrologic

cycle illustrated in Figure 5 suggests, so a comprehensive perspective on sustainable

development in China must necessarily include consideration of its air and land resources.

Analyses of its regulatory frameworks concerning the atmospheric and terrestrial domains

represent yet more opportunities for investigation to bolster the contention that the People’s

67 Liu and Speed (2009), p. 207.

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Republic of China is actively pursuing sustainable development policies, programs and practices

relevant to all aspects of its physical environment.

Figure 5. A simplified depiction of the water (or hydrologic) cycle.68

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